Traditional and Khoi-San Leadership Bill: Clauses 38 to 70, with Deputy Minister

Meeting report

Traditional and Khoi-San Leadership Bill: clause by clause deliberations
The Committee continued with deliberations from page 103 with Clause 38: Responsibilities of the National House of Traditional Leaders.

Clause 38: Responsibilities of the National House of Traditional Leaders
In clause 38(1)(a), Mr Z Xalisa (EFF) asked if the word ‘strategic’ meant it was some sort of business plan.

Mr Charles Nwaila, Director General: Department of Traditional Affairs, said the National House never had a business plan or a budget plan previously to account for what it did. This had been reviewed and they would now have to have a strategic plan and an annual performance plan (APP) just as the departments were required to have.

Mr N Masondo (ANC) said this was how the National House of Traditional Leaders used to manage things so it would be good to give a brief historical background.

Mr Xalisa wanted to know how the APP would be developed.

Mr Nwaila said the APP would be informed by a five-year strategic plan. Targets would be developed and broken down into quarters. At the end of the year a report on work done would be incorporated into the Department’s Annual Report.

Mr Xalisa proposed that there should be a clause that the responsibility of the National House ‘should examine and improve draft legislation’ placed between sub clauses (e) and (f).

Mr Mileham said that matter was dealt with in the following clause.

Ms J Maluleke (ANC) asked if the National House of Traditional Leaders had legislative powers.

The Chairperson said that the National House of Traditional Leaders did not have legislative powers, but they would be consulted and they could make proposals.

Clause 39 Referral of Bills to National House
Mr K Mileham (DA) felt this was an overly broad clause about Bills which affected traditional and Khoi-San communities and one would have to refer every Bill of Parliament to the National House of Traditional Leaders and the Khoi-San Council. He suggested that Clause 39(1)(a) be reworded along the lines of ‘directly affects traditional and Khoi-San communities on any matter identified in section 212 of the Constitution’. Secondly, he said that ‘or pertaining to any matter referred to in section 154(2)’ imposed an additional legislative process for municipalities, because it had to be sent to the National House and this should not be made obligatory. This would delay the legislative process and was not envisaged in the Constitution.

Mr Abram Sithole, Acting Deputy Director General: Research, Policy and Legislation, said he did not foresee a problem in referring it to the National House because whether the National House made inputs or not would not affect the processing of the Bill.

Ms Phumelele Ngema Parliamentary Legal Adviser, said the existing provision in section 18 of the Traditional Leadership and Governance Framework Act made it mandatory that Bills pertaining to customs or customary law had to go to the National House. On section 154(2), she said Chapter 12 of the Constitution recognised traditional leaders and gave them a role at local government level. What had to be made clear was whether these matters should be dealt with by traditional leaders and if so to what extent traditional leaders played a role.

Ms Bongiwe Lufundo, State Law Advisor, said that currently the Act pertained to customs. The issue was that anything that pertained to traditional leaders and Khoi-San had to be referred to the National House for their comments. On section 154(2), the matters referred to were matters that affected the status, institutions, powers or functions of local government matters. Currently those matters had to be published for public comment. The Bill reinforced this by saying that these matters may be referred to the National House for comment.

Mr Mileham said the Bill read that any Bill that ‘may affect… ‘must’ be referred. There was a 60-day limit for the National House to comment which was a legislative requirement on all Bills. Secondly, the law advisor had said that section 212 imposed a mandate to refer. He disagreed and said it did not. He said national legislation may provide a role, it was not obligatory, it was optional. He asked what would happen if an Municipal Finance Management Act (MFMA) amendment was sent to the National House, because traditional leaders had no governance role. Even section 81 made no provision for a governance role.

Ms Lufundo said Mr Mileham was working from an old version of the working document.

Mr Mileham requested a copy of the latest version.

Clause 40: Relationship between National House and kings and queens
Mr Xalisa proposed that a sub-clause be added to protect the rights of the Khoi-San.

Mr Mileham said there was no recognised Khoi-San kings and queens.

Mr Sithole explained that principal traditional leaders were not allowed to be members of the national/provincial house and there appeared to be a gap that had been created which needed to be covered so that all sections of traditional leaders were covered.

Mr Nwaila agreed that it was a gap and it could be accommodated in a revised heading, “Relationship between National House and principals, kings and queens”.

Clause 42: Support to National House
In Clause 42(b) Mr Mileham said he wanted to see it altered so that the financial support had to be subject to the budgetary limitations of the Department.

Mr E Mthethwa (ANC) asked if anyone had to follow budget limitations or available resources.

Deputy Minister of Co-operative Governance and Traditional Affairs, Obed Bapela, said the current practices suggested otherwise and there had to be support. Traditional councils had not been instituted in Limpopo and Mpumalanga because they said they did not have money to do so. Now they would be given support so that the establishment of traditional councils could not be circumvented. The amount was left up to the provinces to decide.

Clause 43: Annual report of National House
In Clause 43(1) Mr C Matsepe (DA) said it should be made compulsory that the National House report as they did not report.

Clause 44: Privileges and immunities of members of National House
In Clause 44(2)(b) Mr Mileham said that the privileges granted to Members in legislatures was to allow for exposure of wrongdoing and maladministration, however this was not a legislative body so why was immunity from prosecution, arrest or damages being granted.

Mr Masondo said that many of these institutions had not had proper conduct and this was to assist in developing democratic practices. He said the abuses were of a tribal or ethnic nature.

Mr Nwaila said he agreed there had to be protection especially in the context of the culture.

Prof Khubisa (NFP) said it would allow for debates to be more robust.

Mr Mileham said the DA objected to the clause as there was not sufficient grounds to grant those privileges.

The Chairperson noted the objection

Clause 46: Rules, orders and committees of National House
Mr Matsepe asked why the requirements for rules and orders were absent at local government level. He said there were rules but they were not being implemented. Who had to enforce the rules?

The Chairperson replied that the Speakers at municipal meetings should enforce the rules.

Clause 47: Dissolution of National House
Mr Mileham sought clarity on Clause 47(1)(b), where there was a higher requirement than even Parliament to dissolve the National House. Why was the requirement so high?

The Chairperson said it was discussed when traditional councils had been discussed and that it should be 50% +1 as according to the traditional councils.

Prof Khubisa asked how legal proceedings would be after their dissolution.

Mr Sithole explained the National House was composed of members that came from provinces. If a provincial house was not constituted timeously it would render the National House ineffective. Should there be urgent matters to attend to in the transitional period the Minister could call on the House to play a role on those specific matters the Minister requested them to attend to.

The Chairperson said he thought dissolution meant they were dissolved.

Mr Nwaila said the clause in question was in the Framework Act and the Minister could call them back to complete any business the Minister requested them to do.

Mr Mileham asked what happened when the National House dissolved. Was there a time period for its dissolution? What if it dissolved in 2017 and the next elections for the House was only in 2022. A clause needed to be inserted that upon its dissolution, the municipalities must request provinces to submit names for the re-establishment of the House until the next elections of the National House.

Mr Rinaldi Bester, COGTA Chief Director: Policy and Legislation, said there were provisions for when the House was dissolved according to sections 28 and 29.

Ms Maluleke (ANC) asked if there was a contradiction according to Clause 47(2)(a).

Mr Bester said that that clause was for urgent business only.

Mr Nwaila said that provinces took their time to reconstitute, sometimes six months. It would assist if it was stated in the legislation that after the House was dissolved provinces should finalise submissions within a certain number of days.

On the question of time frames, Mr Bester said that section 28 and 29 did have time frames.

Clause 49 Provincial Houses of traditional and Khoi-San leaders
In Clause 49(a) Prof Khubisa asked if it was fair that only one woman be represented in the Provincial House.

The Chairperson said that one was a minimum number for the representation of women.

In Clause 49(2)(d) and the election of senior traditional and Khoi-San leaders, Mr Mileham said that there were no traditional leaders in the Western Cape and so the wording ‘where applicable' should be in the same place as in Clause 49(2)(c).

Deputy Minister Bapela left at this point in the meeting.

Clause 50 local houses of traditional and Khoi-San leaders
On Clause 50(1) where a Premier ‘may’ establish a local house, Mr Nwaila said the Free State and the Eastern Cape did not have a local house at present. If it was left as ‘may’ it would be an option and not be obligatory.

Mr Mileham said that by leaving it as ‘may’, it was left up to the provinces and this should be their prerogative as to whether they wanted local houses or not. It should not be forced upon provinces through the use of ‘must’.

Mr Mthethwa said that for alignment purposes, it should be phrased as ‘must’.

The Chairperson asked why provinces were not doing it.

Mr Nwaila replied that it was because of financial considerations. The question to ask was whether local houses were making an impact where they had been established. Local houses would also then have a similar configuration as municipalities.

Mr Mileham asked from where members of Provincial Houses were elected and selected. Were they from traditional councils, and if so, then there was no need to have a local house. Section 81 of the Municipal Systems Act was already a bone of contention because it included traditional leadership in council decisions. How much more representation was needed?

Mr Masondo said it was important that traditional leaders be recognised to ensure that overall governance occurred. Therefore, it was important that alignment took place otherwise it might lead to confusion.

Mr Bester said he had looked carefully at the Constitution which said ‘may’ establish Houses. Provincial houses were done differently from province to province.

The Chairperson said ‘may’ would then remain.

On section 212, Mr Mileham said that national legislation may provide for the establishment of Houses of Traditional Leaders but nowhere was local houses mentioned. Why was there a need for it as he could not see a function for it outside of what was already established.

Mr Nwaila said that currently local houses were not funded, so they were not functional and he agreed on that point. He said that 80% of provinces had established local houses.

Mr Mileham asked what local houses did that was different from traditional councils.

Mr Nwaila said local houses were the same as district municipalities. under each local house there would be traditional councils. The intention was that if one strengthened the local house then one strengthened the traditional councils.

Prof Khubisa said that local houses had traditional councils and they talked to issues of development, conflict and tribal authority.

Mr Matsepe said the Department should not be seen to be pushing the interests of traditional leaders. District Houses in Limpopo did not meet till the end of the term of the House. There were no concrete programs and there was animosity and distrust, as for example in Sekakhune. That local houses in any case overlooked District Houses and went straight to the Provincial House, especially as provinces funded them.

Prof Khubisa said that the KZN local houses did meet and they did work.

Ms Phumelele Ngema, Legal Advisor, said the functions of the local house was found in Clause 50(6) and for the traditional councils in Clause 20(6)(2).

Mr Johan Meiring, COGTA Senior Manager, said there was a need to understand the history of where local houses originated from. There had been ‘regional authorities’ in the past. In terms of culture, there was no means for individual traditional councils to forward their interests. So, the role of the local house was to work together to achieve common interests within a local municipality and the establishment of local houses must be seen with reference to section 81. In many instances, local houses were doing a good job, as witnessed in KZN and the Northern Cape, where it played a coordinating role. Local houses only met once a quarter.

Mr Matsepe said that these structures of the past were used for different, political purposes. They were not democratic institutions and that South Africa was transforming old apartheid structures.

The Chairperson said the matter would be revisited.

In Clause 50(10) Mr Mileham said that the second half of the clause noted that services be provided as a shared service at a district or metropolitan level. He asked where municipalities would get funds for this.

Mr Bester said that provinces would provide the support in the form of shared services.

Mr Nwaila added that it could be in the form of office space.

In Clauses 50(11) and (12), Mr Mileham said he was concerned that both the Minister and the Premier might make regulations and that the regulations would be disparate and create problems. Why was the Premier and not the MEC doing the regulations?

Prof Khubisa said the law had to have uniformity and come from the Minister.

Mr Nwaila agreed. The law had to come from the Minister and then devolve to the provinces which had to be consistent with the law.

Mr Bester said that some provinces wanted to establish local houses but their own laws were insufficient to do this, so section 50 allowed all provinces to implement the establishment of local houses without the need to amend their own laws.

On regulations to be made by the Premier in Clause 50(11), Ms Lufundo said it must not be inconsistent and so the legal advisors and the Department were questioning whether Clauses 50(12) was really necessary.

Clause 51 Establishment of Commission on Traditional Leadership Disputes and Claims
Mr Nwaila said there were no further commissions beyond the current one. The Department would institutionalise these functions within the Department rather than having further commissions.

Mr Bester said this was the current commission on disputes and claims. The reason it was in the Bill was because it still existed, but it was subject to section 70(10). It was not a new commission but a transitional arrangement carrying on from an old commission.

Mr Nwaila said the current term of the commission expired in December 2017 and the Department was processing 1 100 claims. There would be a commission for the Khoi-San. The Nhlapho Commission would end in December and the Department would complete any outstanding claims.

Mr Mileham said the Nhlapho Commission had a term of office. What would happen to the backlog of 1 244 cases.

Mr Sithole explained that currently there were less than 50 cases that needed to be finalised. Any new cases would be resolved in a different manner.

Mr Nwaila said many people were masquerading as kings. The period for claims had expired in February 2010 and had been extended to August 2010.

Prof Khubisa asked if there would be a proclamation that the Commission had ended.

Mr Sithole explained that its term was set. It would cease to exist in December.

Mr Mileham asked what the likelihood was that the Bill would be passed by December. It was unlikely and so what was the point of having a section on the Commission. The whole section should be deleted.

Mr Bester said it had been very relevant when the Bill was tabled. Clause 56(8) needed to be retained.

Mr Mileham agreed and said Clause 57, on the recommendations of the Commission, also needed to be retained.

The Chairperson said Clause 51(1)-(5) would be deleted.

Mr Mileham asked what would happen if there was a dispute after 15 years. How would it be dealt with?

Mr Bester said this was covered by Clause 56(8)

Mr Nwaila said there were mechanisms in place for new kingship cases.

Clause 58 Provincial committees of Commission
Clause 58 would be deleted.

Mr Nwaila spoke to why the traditional leaders had a commission while the Khoi-San had a committee. They had the same functions and different words were chosen to avoid confusion.

Mr Bester said the Department did not want confusion by having two commissions. The name was irrelevant, it was the functions that were significant. It could be called a commission on Khoi-San matters.

Clause 61 Vacancies of the Advisory Committee
Mr Mileham said that Clause 61(d) should be the last of the sub clauses.

Clause 62 Conditions of appointment of members of Advisory Committee
Mr Bester said that Clause 62 should be cross referenced to 54. This was to be deleted and so one will have to amend the clauses.

Clause 64 Application for recognition of Khoi-San communities, branches, senior Khoi-San leaders and branch heads
In Clause 64(2)(a), Mr Mileham asked how one would know if someone was duly authorised.

Mr Bester said the commission would determine the format of applications through a notice including the wording of ‘duly authorised’.

Clause 65 Functions of Advisory Committee
In Clause 65(2)(a), Mr Mileham said the clause was very open ended. The advisory committee “may only investigate and make recommendations in respect of those applications that have been lodged with the Advisory Committee in terms of section 64 within a period of two years from a date to be determined by the Minister by notice in the Gazette, or any such further period as the Minister may determine by notice in the Gazette”. He would prefer that a fixed period be placed in the legislation.

Mr Nwaila said the Nhlapho Commission was for five years and they only dealt with 18 kingship matters.

The Chairperson said that it should be for five years, which could then be extended if necessary.

Mr Bester said the time frame referred to the lodging of applications, not the term of the commission. It was a two-year period. Once it was over, the claims would be processed. There were other procedures in the Bill that would be applicable for claims.

Clause 67 Regulations
In Clause 67(2)(c), where the Minister may publish any draft regulations in the Gazette for public comment, Mr Mileham said the Committee might want to consider that the regulations be brought before the Portfolio Committee for consideration.

Mr Bester said there was a provision in the Interpretation Act where it stated that that regulations were supposed to be brought before Parliament.

The Chairperson said that departments dodged bringing draft regulations before Parliament. The Committee had never received regulations.

Ms Ngema said that according to section 101(4) of the Constitution what was important to know was the extent of the interaction of Parliament, whether it was for information purposes only or not.

The Chairperson stated that Members of Parliament drafted law and should not be preoccupied with drafting regulations.

Clause 68 Delegation of powers and duties by Premier
Mr Mileham proposed a new sub clause, 68(5), that the Minister be informed in writing of such delegations within 30 days.

Clause 70 Transitional arrangements
Mr Mileham asked why Clause 70(1)(a)(i) was there because it was recognised in Clause 70(1)(a)(ii). There was no need for the former and he requested that the recognition be by the Traditional Leadership and Governance Framework Act.

Mr Bester said traditional leaders had been recognised for years. There had been traditional leaders prior to the Traditional Leadership and Governance Framework Act and afterwards.

Mr Mileham said that if they were recognised by the Traditional Leadership and Governance Framework Act, then all would have been recognised and any other recognition prior to that should be discarded.

Mr Meiring said the Department needed to think about the matter. When the original Framework Act came into operation there were also transitional arrangements to deal with traditional leaders recognised in terms of previous legislation. This Bill repealed the Framework Act.

In Clause 70(1)(c)(ii) Mr Mileham asked why the headman/woman remained in place until they died.

Mr Masondo said it was his understanding that there would be a grace period until death. This matter had been presented before already.

Mr Nwaila replied it was in keeping with other hierarchies. The Nhlapho Commission which had decision making powers had arrived at this. It was a once off and was a means towards phasing it out.

Mr Mileham said that in the KZN there was a need to find funds for 1 800 headmen. This could not be right as they had been wrongfully appointed.

Mr Nwaila said that the KZN headmen were people responsible for villages. There were 3 100 headmen. On the budget, he said it would not affect many people. If they were to be paid it had to be ratified at provincial level.

Mr Meiring said that previous legislation did not have any compliance criteria.

Mr Matsepe said there were currently indunas, but the Bill talked of headmen and headwomen. Were traditional leaders aware of the changes that would be occurring? Under whose jurisdiction did one become a headman if the traditional leader was not aware that one applied to become a headman.

Mr Nwaila said that government did not appoint headmen, it was a royal family matter.

Mr Matsepe said that this would cause conflict because a traditional leader would not support someone who had to become a headman. So legitimate people would not be allowed to became headmen. How could the fact that one had to toe the line in terms of traditional leaders before being able to become a headman.

Mr Meiring said this was exactly what the Bill aimed to do. One could not talk of a headman as an individual, it was an institution which had to be recognised. Thereafter the community and royal family would decide on a headman which would be recognised by government.

Mr Mileham proposed the insertion in sub clause 70(1)(d) ‘and which complies with all requirements of that Act’ after ‘not inconsistent with the Traditional Leadership and Governance Framework Act “.

In Clause 70(3) Mr Nwaila said that a new word was needed to replace the use of the word ‘tribe’ because of the historical context.

Mr Matsepe said that within communities there were several tribes.

Mr Masondo said that what the DG had raised should be noted so that an appropriate word could be found.

The Chairperson said he thought it had been agreed upon to call them traditional communities.

Mr Mileham said that the clause referred to old legislation in which communities were recognised as tribes and if they are recognised as a tribe they are deemed as traditional communities now.

The Chairperson said there would be no harm in changing the term ‘tribe’ to a better suitable word.

Mr Mileham said that Clause 70(4) had to be consistent with Clause 70(1)(d).

Mr Bester said this was different from the others. One had to comply with section 16(2) on requirements that traditional councils needed to meet. Tribal Authorities would be regarded as Traditional Councils provided they met the requirements of section 16(2).

Mr Mileham said his concern was that they were given one year, hence they were a legal entity in that period and therefore his concern about granting legitimacy to a body that was not yet legitimate.

Mr Nwaila said converting tribal authorities to traditional councils was very cumbersome. The provision of one year was to finalise all the requirements tribal authorities had to comply with.

The Chairperson noted the inputs made for consideration.

Mr Matsepe asked what was implied in Clause 70(5)(a).

Mr Nwaila said the structures were given an opportunity to take their case to the Commission but they did not do it on time and it was not desirable to continue with community authorities and they would be done away with. This was another opportunity for Communal Authorities to make their case.

On the Communal Authority, Mr Meiring said that community authorities had a history attached to it. Originally when communities did not qualify as traditional communities they were recognised as communal authorities and communal authority councils. There were regulations in KZN for the administration of communities and when there was intermingling of traditional communities there was recognition of a community authority. Currently community authorities were being unbundled to comply with legislation. Some of them had the opportunity to register their case with the Commission to be recognised as traditional communities.

Mr Nwaila noted an inconsistency in Clause 70(6)(a) because it talked of the MEC and an earlier question by Mr Mileham had asked why regulations were done by the Premier and not by the COGTA MEC. This needed to be checked by the Department and the law advisors.

Mr Bester said there were references to the Commission which would have to be eliminated.

Mr Mileham wanted clarity on what was meant by ‘on the date of the recognition of a successor’ in Clause 70(8)(c)(iii).

Mr Bester replied that a regent was a minor. On the date that minor was no longer alive that kingship lapsed.

Mr Mileham asked why the recognition was as a kingship or queenship and not as a principal leader.

Mr Bester said it was not a recognition of a kingship. It was the 12 cases that the Commission and the President recognised in 2010. Five cases did not meet all requirements. The principle was that this was not a position one applied for.

Mr Mileham asked when a cleaned-up version of the draft would be available.

The Chairperson asked that the drafting team not be pressured.

The meeting was adjourned.